The following papers were read and considered by the Court on this motion:
Claimants’ Notice of Motion for Partial Summary Judgment, Claimants’
Affirmation in Support with Exhibits 1- 16, Claimants’ Notice of Motion to
Supplement the Record on Partial Summary Judgment, Claimants’ Affirmation
in Support of Motion to Supplement the Record on Partial Summary Judgment with
annexed Exhibits A-B, Defendant’s Affirmation in Opposition with Annexed
Exhibits A-LL and Claimants’ Reply Affirmation in Further
Support. Claimants, John Restivo and Dennis Halstead, have brought this motion
seeking an order granting them partial summary judgment pursuant to CPLR 3212
and Court of Claims Act § 8-b(5).
On December 3, 1986, claimants were convicted in a joint trial for the crimes
of rape and second degree murder of Theresa Fusco. Thereafter they were each
sentenced to two concurrent terms of 25 years to life on the murder counts and
to a consecutive term of 8⅓ to 25 years for the rape count. Claimant,
John Restivo, was incarcerated from March 16, 1987 to June 11, 2003 and
claimant, Dennis Halstead, was incarcerated from February 27, 1987 to June 11,
2003. At claimants’ trial the prosecution presented, inter alia,
evidence of Ms. Fusco’s hair that was allegedly found in Mr.
Subsequent to their convictions, various DNA tests excluded claimants as the
source of DNA obtained from the victim’s body. On June 11, 2003, Supreme
Court Justice Victor M. Ort issued an order vacating claimants’
convictions pursuant to CPL §§ 440.10(1)(g) and 440.30(3). In
December 2005, John Kogut was retried before Justice Ort in a bench trial. On
December 21, 2005, Justice Ort found Mr. Kogut not guilty of all his indicted
crimes. In delivering the verdict, Justice Ort stated that he did “not
believe that the question hairs were left in the van on or about November 10th
Thereafter on December 29, 2005, the Nassau County Office of the District
Attorney moved to dismiss the indictments against both John Restivo and Dennis
Halstead pursuant to CPL § 210.20(1)(h). Supreme Court Justice William C.
Donnino granted the motion and dismissed the charges. In granting the motion,
Justice Donnino reasoned that “[a]dvances in DNA testing have revealed
that the semen found in the deceased was not the semen of any one of the three
defendants charged with committing these crimes. With respect to the hair of
the deceased, Justice Ort found that it was not in defendant Restivo’s
van. Regardless of whether that is a binding ruling, it is a significant
finding in evaluating the viability of a continued prosecution. In short, the
physical evidence does not connect the defendants to the crime, and the
statements attributed to the defendants are contradicted by the physical
As the party seeking summary judgment, claimants must make a prima facie
showing of entitlement to judgment as a matter of law, by offering sufficient
evidence to eliminate any material issues of fact from the case (Cox v
Kingsboro Medical Group, 88 NY2d 904 ; Winegrad v New York Univ.
Med. Center, 64 NY2d 851 ; Zuckerman v City of New York, 49
NY2d 557 ). Failure to make a prima facie showing requires denial
of summary judgment, regardless of the sufficiency of the opposing papers
(Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 ). Once
the proponent of a summary judgment motion establishes a prima facie
showing then the burden shifts to the opposing party to produce evidentiary
proof in admissible form sufficient to demonstrate the existence of material
issues of fact which require a trial of the action (Zuckerman v City of New
York, 49 NY2d 557, 562 ).
Court of Claims Act § 8-b provides “redress to innocent persons who
prove by clear and convincing evidence that they were unjustly convicted and
imprisoned” (Ivey v State of New York, 80 NY2d 474, 479 ).
However, Court of Claims Act § 8-b(5) states, in pertinent part, that in
order to obtain a judgment in his favor a claimant must prove by clear and
convincing evidence that: (a) he has been convicted of one or more felonies or
misdemeanors and has served all or any part of the sentence of imprisonment; (b)
the judgment of conviction was reversed or vacated and the accusatory instrument
dismissed on certain statutory grounds; (c) claimant did not commit any of the
acts charged in the accusatory instrument and (d) claimant did not by his own
conduct cause or bring about their conviction.
In the present case, claimants have submitted sufficient evidence establishing
that they were convicted of more than one felony, served a portion of their
sentences of imprisonment, their judgments of conviction were vacated pursuant
to CPL § 440.10(g) and that their indictments were dismissed (see Long v
State of New York, 7 NY3d 269 ). Additionally, defendant has not
opposed that portion of claimants’ motion seeking partial summary judgment
as to these two elements of their claim. Accordingly, the Court finds that
claimants have met their burden under Court of Claims Act §§ 8-b(5)(a)
and 8-b(5)(b) and are entitled to partial summary judgment as to these two
elements of their claim.
In order to obtain partial summary judgment under Court of Claims Act §
8-b(5)(c), claimants must establish by clear and convincing evidence that they
did not commit any of the acts charged in the accusatory instrument. The clear
and convincing evidence standard requires claimants to put forth evidence which
would satisfy the Court, as trier of fact, that it is highly probable that they
did not commit any of the acts charged in the accusatory instrument (Acosta v
State of New York, 22 AD3d 367 [1st Dept 2005]; Alexandre v State of New
York, 168 AD2d 472 [2d Dept 1990]; see also PJI 1:64). The evidence
must not be equivocal, contradictory or open to opposing inferences
(id.). Claimants have failed to meet this demanding burden at this
juncture in the case.
Claimants argue that defendant is in privity with the Nassau County District
Attorney’s Office and is consequently estopped from challenging certain
findings made at claimants’ dismissal proceedings as well as findings made
at the re-trial of John Kogut. Defendant avers, inter alia, that it is
not in privity with the Nassau County District Attorney’s Office.
The doctrine of collateral estoppel precludes a party from relitigating in a
subsequent action an issue clearly raised in a prior action and decided against
that party or those in privity to that party (Ryan v New York Tel. Co.,
62 NY2d 494, 500 ). In order to apply the doctrine of collateral
estoppel two requirements must be satisfied. “First, the party seeking
the benefit of collateral estoppel must prove that the identical issue was
necessarily decided in the prior action and is decisive in the present action...
[and] [s]econd, the party to be precluded from relitigating an issue must have
had a full and fair opportunity to contest the prior determination”
(D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 ).
It is well settled that a litigant need not have been a party to the original
action in order to invoke the doctrine of collateral estoppel on its behalf in a
subsequent action (B. R. DeWitt, Inc. v Hall, 19 NY2d 141 ). The
“party seeking the benefit of collateral estoppel has the burden of
demonstrating the identity of the issues in the present litigation and the prior
determination, whereas the party attempting to defeat its application has the
burden of establishing the absence of a full and fair opportunity to litigate
the issue in the prior action” (Kaufman v Eli Lilly & Co., 65
NY2d 449, 456 ).
Claimants initially seek to preclude defendant from contesting Justice
Ort’s finding that he did not believe that the victim’s hairs found
in John Restivo’s van were left in the van on or about November 10, 1984.
Claimants also seek to preclude defendant from contesting the results and/or the
reliability of the DNA testing as presented in the dismissal proceedings before
Justice Donnino. Claimants have established that these issues were raised in
prior litigation and that they were determined against the interests of the
Nassau County District Attorney’s Office.
Defendant was not a party to any of the previous litigation, however, a
non-party to the prior litigation may be collaterally estopped by a
determination if that party had “a relationship with a party to the prior
litigation such that his own rights or obligations in the subsequent proceeding
are conditioned in one way or another on, or derivative of, the rights of the
party to the prior litigation” (D’Arata v New York Cent. Mut.
Fire Ins. Co., 76 NY2d 659, 664 ).
When considering whether the non-party was in privity with the party against
whom the litigated issue was decided, courts must carefully analyze the
relationship between the parties. Privity has been described as “an
amorphous concept not easy of application” (Matter of Juan C. v
Cortines, 89 NY2d 659, 667 [quoting D’Arata v New York Cent.
Mut. Fire Ins. Co., supra]). Privity “includes those who are
successors to a property interest, those who control an action although not
formal parties to it, those whose interests are represented by a party to the
action, and [those who are] coparties to a prior action” (Buechel v
Bain, 97 NY2d 295, 304  [internal citations omitted]). When two
governmental agencies are involved, a prior determination binding one
governmental agency may not necessarily bind a different governmental agency.
“[B]oth the circumstances of the actual relationship between the two
agencies as demonstrated by the record and their statutory relationship are
relevant” (Matter of Juan C. v Cortines, 89 NY2d 659,668
[citations omitted]). If the second action involves a governmental agency
whose functions and responsibilities are distinct from those of the governmental
agency in the first action, such that preclusion would interfere with the proper
allocation of authority between the two agencies, preclusion will not apply
(Matter of Juan C. v Cortines, 89 NY2d 659, 669 [citing Restatement
[Second] of Judgments, §36, comment f]).
Public Officers Law §2 provides the statutory definitions for “state
officer” and “local officer.” “To call an Assistant
District Attorney a State officer would be impossible under the terms of that
statute” (Fisher v State of New York, 10 NY2d 60, 61 ). Even
though the “District Attorney is in a sense part of the judicial system of
the State and prosecutes criminal causes in the name of the People of the State
[the District Attorney] does not act as a State officer or employee in any such
sense as would make the State liable for his wrongdoing” (Fisher v
State of New York, 10 NY2d 60, 61 ).
In terms of functionality, the District Attorney’s Office is statutorily
charged with the investigation and prosecution of violations of state and local
criminal statutes as prescribed by County Law §700 et. seq. The Office of
the Attorney General, defendant’s counsel in this matter, derives its
authority from Executive Law § 60 et seq. While the Attorney General has
statutory authority to prosecute crimes under certain circumstances, it has
numerous civil responsibilities that make its functions and responsibilities
mostly distinct from that of the District Attorney. The District Attorney
functioned as the prosecutor in the underlying criminal proceedings involving
claimants and John Kogut without any functional or legal involvement from the
Office of the Attorney General. Conversely, in the present action, the Office
of the Attorney General is defending the State of New York in a civil proceeding
wherein claimants are seeking monetary damages.
Historically, the interests of the State of New York, as presented by the New
York State Governor’s Office, have conflicted with the positions taken by
the local District Attorneys’ Offices requiring litigation to resolve the
issues between the two separate entities (Matter of Johnson v Pataki, 91
NY2d 214 ; Mulroy v Carey, 43 NY2d 819 ). In those
situations, the Governor elected to supersede the local District Attorney and
replace him as prosecutor with the Attorney General’s Office. In such a
situation where the Governor exercises control over an action an argument of
privity may be valid, however that is not the case in the present action.
A District Attorney’s Office has never been held to stand in privity with
the State of New York in an unjust conviction and imprisonment context such that
collateral estoppel has been applied as claimants are suggesting. There have
been instances where the District Attorney’s Office was held to stand in
privity with the Division of Parole (People ex rel. Dowdy v Smith
NY2d 477 ; People ex rel. Piccarillo v New York State Bd. of
, 48 NY2d 76 ). However, these holdings were based on the
unique relationship between the Division of Parole in the parole proceeding and
the People as prosecutors in the criminal
(Matter of Juan C. v Cortines
89 NY2d 659 ).
Thus, this Court finds that defendant is not estopped from challenging the
findings made at claimants’ dismissal proceedings as well as the findings
made at the re-trial of John Kogut.
It is well established that an acquittal of criminal charges is not equivalent
to a finding of innocence (Reed v State of New York
, 78 NY2d 1, 8
). “An acquittal may prevent relitigation of issues necessarily
resolved in the defendant’s favor at a subsequent criminal proceeding...
[h]owever, where the subsequent proceeding is a civil one, involving a lower
standard than proof beyond a reasonable doubt, an acquittal is not proof of
.). Nor is the fact that claimants’
indictments were dismissed in this matter clear and convincing proof of their
.). It is clear that the prosecution moved to dismiss the
indictments in the present matter due to their determination that they could not
prove claimants’ guilt beyond a reasonable doubt (Cl Ex 6). The inability
of the prosecution to satisfy their burden of proof in the criminal trial is
simply not equivalent to the requirements of Court of Claims Act §
8-b(5)(c) which dictate that claimants prove their innocence by clear and
convincing evidence (id
.). In the case of Brown v State of New
, Court of Claims Judge Nicholas V.
Midey, Jr. granted claimant’s summary judgment motion in an unjust
conviction and imprisonment matter which involved DNA evidence. The present case
differs from the Brown
case in several significant aspects which are not
limited to the criminal charges and evidence presented in each case. Discovery
had also been completed at the time of Judge Midey’s decision and order as
a trial of the matter was already scheduled. Consequently, at this early
pre-note of issue stage in the proceedings, a grant of summary judgment pursuant
to Court of Claims Act § 8-b(5)(c) would be inappropriate.
Therefore, for the foregoing reasons, claimants’ motion for partial
summary judgment is granted in part pursuant to CPLR 3212 for Court of Claims
Act §§ 8-b(5)(a) and 8-b(5)(b). Claimants’ motion is denied in
all other respects.